Seventeen long years ago, I urged the creation of “religious charter schools,” either encouraging their start from scratch or—more realistically—allowing extant Catholic and other faith-based schools to convert to charter status without having to forego the religious elements that distinguish them and that many parents crave for their children.
With hundreds more Catholic schools having perished in the interim, that idea seems more important than ever—and with the Supreme Court’s Espinoza decision now in hand, the biggest single obstacle to realizing it may have fallen.
The Supreme Court’s decision siding with religious-school parents in Espinoza v. Montana Department of Revenue will have implications far beyond Montana. Though the court did not explicitly say so, its decision effectively struck down Blaine amendments, provisions in thirty-eight state constitutions forbidding aid to religious institutions. If the narrow 5-4 majority of the Espinoza decision remains intact, the case will be both one of the most significant religious liberty and education decisions in decades.
If states’ Blaine amendments are now headed to the ash heap of history, imaginative leaders of Catholic schools should be able to team up with smart Constitutional lawyers and like-minded legislators to craft ways to do this, most likely at the outset in “red” states.
Justice Breyer may have anticipated such a possibility himself, back during January’s oral arguments, though he framed it with blue jurisdictions in mind. As reported by Education Week:
“Say in San Francisco or Boston or take any city or state, and they give many, many, many millions of dollars to the public school system, and a lot of them give a lot of money to charter schools,” Breyer said. “Now, they don’t give money to Catholic schools. All right? Now, if we decide you’re right, does that all change?”
Yes, it could now change, say I, and I believe Professor Dunn and other analysts would agree, though the odds of it actually happening in blue states such as California and Massachusetts are slim. Indeed, the likelier prospect in those places is a major rift within the choice and charter movements, as more than a few charter partisans want no part of religious schooling.
For those whose memories may have been disturbed by other recent events, “Blaine amendments“ refer to provisions in most state constitutions—nearly all adopted in a frenzy of anti-Catholic and anti-immigrant sentiment in the late nineteenth century and named for a prominent GOP congressman (and 1884 Presidential candidate)—that bar state aid to religious organizations of various kinds. For more than a hundred years, and despite sundry exceptions in other realms, they’ve pretty much blocked direct state and local subsidies to parochial schools of all kinds across much of the United States. Never mind that such support is taken for granted in almost every other modern land.
The First Amendment to the U.S. Constitution, however, throws a curve ball at such provisions because, in addition to barring the “establishment of religion,” it vouchsafes to Americans the free exercise of religion. That’s what tipped the balance for five out of nine justices in Espinoza, ruling that “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
Similarly, seems to me, a state need not create charter schools—and five have so far opted not to—but if it does allow (and pay) for their creation, can it constitutionally disqualify some because they are or hope to be religious?
I’m no attorney. But this door looks to be worth opening.
Here’s my original proposition, whose time, I hope, may now finally have come:
The tragedy of urban education is the dearth of effective schools for poor kids. That acute shortage belies the right nominally conferred by the federal No Child Left Behind Act, namely that parents can move their children from failing public schools to better ones. Many communities have nowhere near enough capacity in well-functioning schools to provide an education haven for those thousands of youngsters. (In cities like New York and Chicago, we’re talking hundreds of thousands.)
Federal law also says such kids may go to charter schools, but there aren’t enough of them, either, at least not the highly effective kind.
How to get more? Take advantage of the charter option and become more creative and open-minded. Many cities with weak public schools have strong churches and faith-based organizations. And one thing that many parents crave for their children is a school that not only teaches the three R’s, not only keeps Tony and Tanika safe, not only gives them a teacher who knows their names and cares if they’re learning—but that also supplies them with values, morals, a code of behavior, and a sturdy faith in God.
Yet the No Child Left Behind legislation doesn’t include the right to go to private schools, where such things are routine. Paul G. Vallas, the chief executive officer of the Philadelphia school system, is seeking a way around that restriction, hoping to send disadvantaged youngsters from troubled public schools into archdiocesan classrooms that have space and are willing. But, like vouchers, this is an uphill political battle. And even with voucher aid, many children who would benefit from the curricular and moral offerings of private schools cannot afford to matriculate. But faith-based organizations seeking to operate zero-tuition charter schools have, until now, been compelled to exclude all forms of religiosity—thus quashing one of their major incentives to serve children and barring one of the things they do best.
Solution: Let religious schools become part of the charter system so long as they’re willing to abide by the results-based accountability arrangements that other charter schools must accept, namely state academic standards and tests. And allow churches to found new charter schools without shedding their sectarianism.
In most countries, this wouldn’t qualify as an innovation, for they assume that government has an obligation to support church-affiliated as well as secular schools. In the United States, however, a daft reading of the First Amendment’s “establishment” clause was long held to bar public aid to religious schools.
The U.S. Supreme Court’s 2002 Zelman decision changed this. It said there’s no federal prohibition on state dollars going to such schools so long as this results from free and open choices by parents. It thus legalized voucher programs in several states and others struggling to be born, including the new one in Colorado and the District of Columbia plan now pending in Congress.
But vouchers aren’t the only education innovation that Zelman makes possible. Charter schools, too, get public dollars only when parents freely choose them. No child is compelled to attend a charter school. If parents don’t select it, it has neither pupils nor revenue.
Yes, charter schools must be “sponsored” by state-approved agencies, and some will see excessive “entanglement.” But private schools also need state licenses and, under the pending District of Columbia voucher program, must accept other constraints devised by Congress. Doing so will not, however, erase their religious character.
True, other differences remain between private and charter schools. Wholly private schools can restrict attendance to members of their faith and expel youngsters who refuse to behave. They can operate separate programs for girls and boys and need not comply with Uncle Sam’s myriad rules for educating children with disabilities.
Because they value such freedoms, many private schools will shun greater involvement with government. So be it. But some would welcome the opportunity to serve more children. In most places, per-pupil funding for charters, meager as it is, exceeds current tuition levels—and is more than vouchers would bring. In any case, the entanglements that accompany charter school status are not much worse—as is becoming clear in Florida, where new rules are raining down upon private schools that take part in that state’s several voucher programs. It’s a calculation each school can make for itself.
A few private schools have converted to charter status, but they did so by severing all religious ties. A few others have created sister schools that operate as charters. I visited an interesting pair of schools in Houston, one private (and religious), the other charter (and secular), sharing facilities but functioning as separate organizations.
Creating a secular sister school is one viable model for a parochial school or church that wants to serve more kids. It may be the only option in states with “Blaine amendments” that prohibit public dollars from flowing into religious institutions no matter what the Supreme Court says about the U.S. Constitution. But in the dozen or so states without such impediments, why not try religious charter schools?
Watchdog groups will rush back to court at the first sign of a new breach in their cherished “wall of separation,” and in time this education innovation would also wind up in the Supreme Court. But that’s no reason to forgo it. Cash-strapped states may fear the budgetary impact of private school pupils suddenly qualifying for public subsidies. Yet that cost can also be contained. Since many state charter laws bar private school conversions, most religious charters would be new schools, serving kids not already in the private school orbit—and adding to the supply of seats in decent schools for youngsters who need them.
Overriding all objections is America’s woeful lack of such seats. Every possible asset should be brought to bear on the creation of more. Religious charter schools deserve consideration.
The original 2003 article first appeared in Education Week.